Rickey Villegas v. Michael J. Astrue, No. 2:2010cv01700 - Document 17 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is reversed in part, and this matter is remanded for further administrative action consistent with this Opinion. See order for further details. (hr)
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Rickey Villegas v. Michael J. Astrue Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RICKEY S. VILLEGAS, 12 Plaintiff, 13 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ ) Case No. CV 10-1700 JC ) ) ) MEMORANDUM OPINION AND ) ORDER OF REMAND ) ) ) ) ) ) ) 18 19 I. SUMMARY 20 On March 9, 2010, plaintiff Rickey S. Villegas (“plaintiff”) filed a 21 Complaint seeking review of the Commissioner of Social Security’s denial of 22 plaintiff’s application for benefits. The parties have consented to proceed before a 23 United States Magistrate Judge. 24 This matter is before the Court on the parties’ cross motions for summary 25 judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”). The 26 Court has taken both motions under submission without oral argument. See Fed. 27 R. Civ. P. 78; L.R. 7-15; March 11, 2010 Case Management Order ¶ 5. 28 /// 1 Dockets.Justia.com 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is REVERSED AND REMANDED for further proceedings 3 consistent with this Memorandum and Opinion and Order of Remand. 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On August 10, 2005, plaintiff filed an application for Disability Insurance 7 Benefits and Supplemental Security Income benefits. (Administrative Record 8 (“AR”) 104-06, 781-86). Plaintiff asserted that he became disabled on November 9 18, 1998, due to nerve problems; leg, ankle and back pain; carpal tunnel 10 syndrome; a crushed foot; lumbar spine strain; and diabetes. (AR 104, 156-57). 11 The Administrative Law Judge (“ALJ”) examined the medical record and heard 12 testimony from plaintiff, who was represented by counsel, on July 17, 2007, and 13 April 16, 2008. (AR 796-821, 822-38). 14 On June 25, 2008, the ALJ determined that plaintiff was not disabled 15 through the date of the decision. (AR 21-39). Specifically, the ALJ found: 16 (1) plaintiff suffered from the following severe combination of impairments: 17 musculoligamentous strain of the lumbosacral spine, lumbar degenerative disc 18 disease, spondylosis at C5-C6 of the cervical spine, degenerative disc disease of 19 the cervical spine, degenerative changes of the thoracic spine, hypertension, non20 insulin dependent diabetes mellitus, an adjustment disorder and/or a mood 21 disorder associated with general medical condition, and alcohol dependence in 22 remission (AR 25-26); (2) plaintiff’s impairments, considered singly or in 23 combination, did not meet or medically equal one of the listed impairments (AR 24 27); (3) plaintiff retained the residual functional capacity to perform light work 25 with certain limitations1 (AR 28-29); (4) plaintiff cannot perform his past relevant 26 27 28 1 Specifically, the ALJ determined that plaintiff “has the residual functional capacity to lift and carry 20 pounds occasionally and 10 pounds frequently, stand and walk for about six out of eight hours and also sit for six hours in an eight-hour workday. He must change positions for (continued...) 2 1 work (AR 38); and (5) there are jobs that exist in significant numbers in the 2 national economy that plaintiff can perform (AR 38). 3 The Appeals Council denied plaintiff’s application for review. (AR 8-10). 4 III. APPLICABLE LEGAL STANDARDS 5 A. 6 To qualify for disability benefits, a claimant must show that he is unable to Sequential Evaluation Process 7 engage in any substantial gainful activity by reason of a medically determinable 8 physical or mental impairment which can be expected to result in death or which 9 has lasted or can be expected to last for a continuous period of at least twelve 10 months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. 11 § 423(d)(1)(A)). The impairment must render the claimant incapable of 12 performing the work he previously performed and incapable of performing any 13 other substantial gainful employment that exists in the national economy. Tackett 14 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 15 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 16 sequential evaluation process: 17 (1) 18 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 19 (2) Is the claimant’s alleged impairment sufficiently severe to limit 20 his ability to work? If not, the claimant is not disabled. If so, 21 proceed to step three. 22 /// 23 /// 24 /// 25 26 27 28 1 (...continued) five minutes once an hour. He must use a cane but can ambulate for short distances without it. He can frequently reach, handle, finger, feel, push, and pull. [Plaintiff] can occasionally operate foot controls with his left foot, and he can frequently operate them with his right foot. He can climb, balance, stoop, kneel, crouch and crawl. He can understand, remember, and carry out short, simplistic instructions.” (AR 28-29). 3 1 (3) Does the claimant’s impairment, or combination of 2 impairments, meet or equal an impairment listed in 20 C.F.R. 3 Part 404, Subpart P, Appendix 1? If so, the claimant is 4 disabled. If not, proceed to step four. 5 (4) Does the claimant possess the residual functional capacity to 6 perform his past relevant work? If so, the claimant is not 7 disabled. If not, proceed to step five. 8 (5) 9 Does the claimant’s residual functional capacity, when considered with the claimant’s age, education, and work 10 experience, allow him to adjust to other work that exists in 11 significant numbers in the national economy? If so, the 12 claimant is not disabled. If not, the claimant is disabled. 13 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 14 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). 15 The ALJ has an affirmative duty to assist the claimant in developing the 16 record at every step of the inquiry. Bustamante v. Massanari, 262 F.3d 949, 954 17 (9th Cir. 2001); see also Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) 18 (ALJ has special duty to fully and fairly develop record and to assure that 19 claimant’s interests are considered). The claimant has the burden of proof at steps 20 one through four, and the Commissioner has the burden of proof at step five. 21 Bustamante, 262 F.3d at 953-54 (citing Tackett, 180 F.3d at 1098); see also Burch, 22 400 F.3d at 679 (claimant carries initial burden of proving disability). 23 B. 24 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 25 benefits only if it is not supported by substantial evidence or if it is based on legal 26 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 27 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 28 (9th Cir. 1995)). Substantial evidence is “such relevant evidence as a reasonable 4 1 mind might accept as adequate to support a conclusion.” Richardson v. Perales, 2 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 3 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 4 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 5 To determine whether substantial evidence supports a finding, a court must 6 “‘consider the record as a whole, weighing both evidence that supports and 7 evidence that detracts from the [Commissioner’s] conclusion.’” Aukland v. 8 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 9 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 10 or reversing the ALJ’s conclusion, a court may not substitute its judgment for that 11 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 12 IV. DISCUSSION 13 A. Dr. Iofel’s Opinion 14 Plaintiff argues that the ALJ erred in evaluating the opinion of treating 15 physician Dr. Rina Iofel. (Plaintiff’s Motion at 14-21). The Court agrees. 16 17 1. Pertinent Law In Social Security cases, courts employ a hierarchy of deference to medical 18 opinions depending on the nature of the services provided. Courts distinguish 19 among the opinions of three types of physicians: those who treat the claimant 20 (“treating physicians”) and two categories of “nontreating physicians,” namely 21 those who examine but do not treat the claimant (“examining physicians”) and 22 those who neither examine nor treat the claimant (“nonexamining physicians”). 23 Lester v. Chater, 81 F.3d 821, 830 (9th Cir.), as amended (1996) (footnote 24 reference omitted). A treating physician’s opinion is entitled to more weight than 25 an examining physician’s opinion, and an examining physician’s opinion is 26 entitled to more weight than a nonexamining physician’s opinion. See id. In 27 general, the opinion of a treating physician is entitled to greater weight than that of 28 a non-treating physician because a treating physician “is employed to cure and has 5 1 a greater opportunity to know and observe the patient as an individual.” Morgan 2 v. Commissioner of Social Security Administration, 169 F.3d 595, 600 (9th Cir. 3 1999) (citing Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)). 4 A treating physician’s opinion is not, however, necessarily conclusive as to 5 either a physical condition or the ultimate issue of disability. Magallanes v. 6 Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Rodriguez v. Bowen, 876 F.2d 7 759, 761-62 & n.7 (9th Cir. 1989)). Where a treating physician’s opinion is not 8 contradicted by another doctor, it may be rejected only for clear and convincing 9 reasons. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). An ALJ can reject the 10 opinion of a treating physician in favor of a conflicting opinion of another 11 examining physician if the ALJ makes findings setting forth specific, legitimate 12 reasons for doing so that are based on substantial evidence in the record. Id. “The 13 ALJ must do more than offer his conclusions.” Embrey v. Bowen, 849 F.2d 418, 14 421-22 (9th Cir. 1988). “He must set forth his own interpretations and explain 15 why they, rather than the [physician’s], are correct.” Id.; see Thomas v. Barnhart, 16 278 F.3d 947, 957 (9th Cir. 2002) (ALJ can meet burden by setting out detailed 17 and thorough summary of facts and conflicting clinical evidence, stating his 18 interpretation thereof, and making findings). “Broad and vague” reasons for 19 rejecting a treating physician’s opinion do not suffice. McAllister v. Sullivan, 888 20 F.2d 599, 602 (9th Cir.1989). 21 When they are properly supported, the opinions of physicians other than 22 treating physicians, such as examining physicians and nonexamining medical 23 experts, may constitute substantial evidence upon which an ALJ may rely. See, 24 e.g., Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (consultative 25 examiner’s opinion on its own constituted substantial evidence, because it rested 26 on independent examination of claimant); Morgan, 169 F.3d at 600 (testifying 27 medical expert opinions may serve as substantial evidence when “they are 28 supported by other evidence in the record and are consistent with it”). 6 1 2. 2 Analysis Dr. Iofel completed a “residual functional capacity questionnaire” dated 3 July 3, 2007. (AR 679-84). Dr. Iofel opined, among other things, that plaintiff 4 could sit for fifteen minutes or stand for ten minutes at one time; that plaintiff 5 must be permitted to shift positions at will from sitting, standing or walking; that 6 plaintiff would likely need to take a fifteen-minute break every two hours; that 7 plaintiff had substantial manipulative limitations; and that plaintiff would likely 8 miss work more than three times per month because of his impairments. (AR 6819 84). 10 The ALJ provided four reasons for rejecting Dr. Iofel’s opinion. First, the 11 ALJ stated that “at the time of her assessment, Dr. Iofel had examined [plaintiff] 12 only once, which puts her essentially in the category of an examining physician.” 13 (AR 36). The ALJ’s assertion is factually incorrect, as Dr. Iofel examined plaintiff 14 on June 12, 2007 (AR 690- 97) and June 27, 2007 (AR 687-89) before completing 15 her assessment on July 3, 2007. In any event, even if Dr. Iofel were considered 16 more akin to an examining physician than a treating physician,2 this does not 17 absolve the ALJ from providing legally sufficient reasons for rejecting her 18 opinion. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (ALJ must 19 provide specific and legitimate reasons for rejecting the contradicted opinion of an 20 examining physician). 21 The ALJ also wrote that Dr. Iofel’s opinion “does not appear to take into 22 consideration the normal EMG/NCS of [plaintiff’s] lower extremities.” (AR 37). 23 Dr. Iofel ordered an electromyelogram and nerve conduction tests following 24 plaintiff’s appointment on June 12, 2007. (AR 696). The tests were performed on 25 26 2 See Le v. Astrue, 529 F.3d 1200, 1201-02 (9th Cir. 2008) (“‘It is not necessary, or even 27 practical, to draw a bright line distinguishing a treating physician from a non-treating physician. 28 Rather, the relationship is better viewed as a series of points on a continuum reflecting the duration of the treatment relationship and the frequency and nature of the contact.’” (quoting Benton v. Barnhart, 331 F.3d 1030, 1038 (9th Cir. 2003)). 7 1 June 29, 2007 (AR 698-708) – several days before Dr. Iofel submitted her July 3 2 assessment. Thus, contrary to the ALJ’s assumption, Dr. Iofel’s assessment may 3 have incorporated the results of these tests. Indeed, although Dr. Iofel did not 4 specifically mention the EMG/NCS tests, she wrote that plaintiff has “possible C6 5 motor radiculopathy” (AR 679), and the findings of the EMG test included 6 evidence of “possible right C6 acute motor radiculopathy.” (AR 707). The 7 electrodiagnostic tests also revealed “evidence suggestive of left ulnar motor 8 neuropathy with motor slowing across the elbow,” and the studies were interpreted 9 as abnormal. (AR 707). The ALJ is correct that the EMG/NCS tests did not 10 reveal any abnormalities in the lower extremities. (AR 707). However, there is no 11 showing that an absence of electrophysiological abnormalities in plaintiff’s lower 12 extremities undermines Dr. Iofel’s assessment. Thus, the ALJ’s conclusion that 13 Dr. Iofel failed to consider the EMG/NCS test results in assessing plaintiff’s 14 limitations does not suffice to reject her opinion. 15 Next, the ALJ wrote that Dr. Iofel’s determination of plaintiff’s 16 “manipulative limitations is inconsistent with the ultimate determination made by 17 the Veteran’s Administration . . . [which] granted only 10 percent disability based 18 on impairment of [plaintiff’s] cervical spine.” (AR 37). Without more, this 19 observation does not undermine Dr. Iofel’s assessment. The only basis for 20 plaintiff’s claim to the Veteran’s Administration appears to have been a “neck and 21 upper back condition,” and the decision contains no discussion of potential 22 manipulative limitations. (AR 742-44). Even if the decision could be considered 23 to refute Dr. Iofel’s assessment of plaintiff’s manipulative limitations, this reason 24 would not suffice to discount her opinions concerning plaintiff’s other limitations. 25 The ALJ’s remaining reason for rejecting Dr. Iofel’s opinion was that he 26 found “nothing in [her] June 12, 2007 report” “[o]ther than the MRI she reviewed” 27 “to support the limitations she assessed.” (AR 37). This statement fails to 28 discredit Dr. Iofel’s opinion for a number of reasons. First, the ALJ appears to 8 1 base this reason on his erroneous belief that Dr. Iofel only examined plaintiff once 2 and the questionable assumption that Dr. Iofel did not observe the 3 electrophysiological test results before rendering her opinion. Second, the ALJ 4 appears to suggest that the MRI results do support Dr. Iofel’s assessment, and it is 5 unclear what additional evidence he required to accept her opinion. Finally, Dr. 6 Iofel’s treatment notes provide additional support for her opinion. Based on her 7 June 12, 2007 examination, she referred plaintiff to the back clinic and prescribed 8 Ultram for his neck and back pain, and ordered EMG/NCS tests for his numbness 9 in the extremities. (AR 696). Following her June 27, 2007 examination, Dr. Iofel 10 prescribed Neurontin for plaintiff’s neck and back pain and noted that an EMG 11 was scheduled for his complaints of carpal tunnel syndrome. (AR 688). In light 12 of the prescriptions and referrals stemming from Dr. Iofel’s first-hand 13 examinations, the ALJ’s statement that “nothing” in Dr. Iofel’s reports supports 14 the limitations she assessed does not suffice to discount her opinion. 15 Remand is warranted for the ALJ to reevaluate Dr. Iofel’s opinion. 16 B. 17 Plaintiff contends that the ALJ erred in evaluating the opinion of examining Dr. Hannani’s Opinion 18 physician Dr. Kambiz Hannani. (Plaintiff’s Motion at 21-25). The Court agrees. 19 Dr. Hannani performed an orthopedic examination of plaintiff on September 20 1, 2007. (AR 721-24). In his Medical Source Statement, Dr. Hannani opined that, 21 “at one time,” plaintiff could sit for six hours or stand or walk for one hour. (AR 22 726). The ALJ sent a letter to Dr. Hannani requesting clarification of this 23 limitation. (AR 739). The ALJ noted that the “opinion relating to ‘at one time’ 24 appears to be an opinion that [plaintiff] needs to alternate his position every hour,” 25 and asked Dr. Hannani to “provid[e] as much detail as possible concerning the 26 need to alternate positions.” (AR 739). Although the ALJ asked several specific 27 questions, Dr. Hannani responded in full that “[a]fter a 5 minute break [plaintiff] 28 can resume sitting or standing or walking.” (AR 739). The ALJ included in his 9 1 determination of plaintiff’s residual functional capacity the requirement that 2 plaintiff “must change positions for five minutes once an hour.” (AR 28). 3 Dr. Hannani’s response to the ALJ’s inquiry was ambiguous. It is unclear 4 whether Dr. Hannani’s statement that plaintiff requires “a 5 minute break” 5 indicates that plaintiff needs to “change positions for five minutes once an hour,” 6 as the ALJ determined (AR 28), or whether it indicates that plaintiff must abstain 7 from work activity for five minutes, as plaintiff argues (Plaintiff’s Motion at 248 25). This ambiguous evidence triggered the ALJ’s duty to develop the record. 9 See Tonapetyan, 242 F.3d at 1150 (“Ambiguous evidence . . . triggers the ALJ’s 10 duty to conduct an appropriate inquiry.”) (citation and internal quotations 11 omitted). The Court cannot conclude that the ALJ’s failure to clarify Dr. 12 Hannani’s statement was harmless error, as the vocational expert testified that a 13 five-minute “work break” once an hour would preclude plaintiff from performing 14 all the occupations she identified (AR 836), including those identified by the ALJ 15 at step five. (AR 38-39; see AR 829-35).3 16 V. CONCLUSION 17 For the foregoing reasons, the decision of the Commissioner of Social 18 Security is reversed in part, and this matter is remanded for further administrative 19 action consistent with this Opinion.4 20 LET JUDGMENT BE ENTERED ACCORDINGLY. 21 DATED: November 24, 2010 ____________/s/_____________________ 22 Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 3 The Court need not, and has not adjudicated plaintiff’s other challenges to the ALJ’s decision except insofar as to determine that a reversal and remand for immediate payment of benefits would not be appropriate. 4 When a court reverses an administrative determination, “the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted). Remand is proper where, as here, additional administrative proceedings could remedy the defects in the decision. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). 10
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